Tucker v. Royal Adhesives & Sealants, LLC

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KEVIN TUCKER, an individual, Plaintiff, v. ROYAL ADHESIVES AND SEALANTS, LLC, a Delaware limited liability company; MARIA EICHACKER, an individual; and DOES 1 through 100, inclusive, Defendants.

No. 2:22-cv-09371-SPG-KS

United States District Court, C.D. California

March 28, 2023

ORDER DENYING PLAINTIFF'S MOTION FOR REMAND [ECF NO. 10]

HON SHERILYN PEACE GARNETT UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiff Kevin Tucker's (“Plaintiff”) Motion for Remand (“Motion”). (ECF No. 10 (“Mot.”)). Having considered the submissions of the parties in support of and in opposition to the Motion, the relevant law, the record in this case, and the arguments during the hearing on the Motion, the Court DENIES the Motion.

I. BACKGROUND

A. Factual Background

The complaint alleges as follows: Plaintiff is a resident of Los Angeles, California. (ECF No. 1 at 12 ¶ 5 (“Compl.”)). Defendant Royal Adhesives and Sealants, LLC (“Royal”) is a Delaware limited liability company with its principal place of business in Wilmington, California.^[1] (Id. at 12 ¶ 6). Defendant Maria Eichacker (“Eichacker”) is a resident of Los Angeles, California. (Id. at 12 ¶ 7). The Complaint does not allege the residency of DOES 1-100. See (id. at 13 ¶ 9).

Starting in 2020, Plaintiff worked for Defendant Royal on an agency assignment. See (id. at 13-14 ¶¶ 11, 14). Plaintiff was hired to stick labels on jars filled with glue that Royal manufacturers. (Id. at 13 ¶ 11). At the time, Plaintiff was the only African American working on the floor; all other coworkers were Hispanic. (Id. at 15 ¶ 20). Plaintiff would come to work on Saturdays to work overtime. (Id. at 14 ¶ 19). To do so, Plaintiff had to call Defendant Eichacker, who plaintiff alleges was his supervisor, for permission to work overtime even though the other workers were told they were free to work overtime if they so-chose. (Id. at 14 ¶¶ 14, 19). While working, an employee named Ramon made the remark, “Ey [Plaintiff], I didn't know black folks like to get up early on Saturday and work!” (Id. at 14 ¶ 19). Plaintiff responded: “Well this black person likes to make money like you Ramon.” Ramon responded, “Let's see how long you be here!” (Id.). Plaintiff's coworkers also got upset with Plaintiff because he did not understand work instructions due to everyone speaking Spanish. (Id. at 15 ¶ 20). Plaintiff asked Eichacker to request his coworkers speak to him in English so he could understand the work and know what was going on. (Id.). These coworkers became upset and stopped talking to Plaintiff during lunch time. (Id.).

On or about February 20, 2020, Plaintiff was asked to clean out a pressure pot that contained glue. (Id. at 13 ¶ 12). Plaintiff received no training to do this. (Id.). While working on the pressure pot, the pot exploded and propelled Plaintiff into a nearby metal shelf rack. (Id. at 13-14 ¶ 13). Defendant Eichacker asked Plaintiff if he was ok. (Id. at 14 ¶ 14). Later, Plaintiff contacted “Horizon,” the agency who he worked for, and then went to see a doctor. (Id.). On February 27, 2020, Plaintiff returned to work, where he was told by a work acquaintance, “Gerardo,” that Plaintiff may be getting fired because the pressure pot blew up and supervisors were saying it was his fault. (Id. at 14 ¶¶ 15, 18). On or about February 28, 2020, Plaintiff was informed by Horizon that his assignment at Royal was “over” due to the “work getting slow.” (Id. at 14 ¶ 18).

Plaintiff believes he was subject to discrimination, harassment, and retaliation based on his race, injury, and medical condition that occurred while Plaintiff was working for Royal. (Id. at 15 ¶ 21). The Complaint specifically alleges that Plaintiff “was subjected to unwanted harassing conduct as [a] result of his race” and because he “complain[ed] of Defendants' illegal acts, harassment, discrimination, and retaliation. (Id. at 18 ¶ 40). The Complaint also alleges that Plaintiff “was made to perform dangerous and untrained work” and was subjected to harassing conduct because of his disability and due to the fact that he had suffered a workplace injury.” (Id.). As to Defendant Eichacker, the Complaint alleges that she permitted this conduct to occur. (Id. at 18 ¶ 43).

B. Procedural History

On November 18, 2022, Plaintiff filed the instant Complaint in Los Angeles County Superior Court against Defendants Royal, Eichacker, and DOES 1 through 100. The Complaint asserts the following state causes of action: (1) Wrongful Termination, in Violation of Public Policy against Royal and DOES 1-100, (id. at 15-16 ¶¶ 24-28); (2) Discrimination on the Basis of Race, in Violation of California's Fair Employment and Housing Act (“FEHA”) against Royal and DOES 1-100, (id. at 16-17 ¶¶ 29-37); (3) Harassment on the Basis of Race and Disability, in Violation of FEHA against all Defendants, (id. at 18-19 ¶¶ 38-48); (4) Retaliation, in Violation of FEHA against Royal and DOES 1-100, (id. at 19-20 ¶¶ 49-56); (5) Violation of Labor Code Section 1102.5 against Royal and DOES 1-100, (id. at 20-22 ¶¶ 57-63); (6) Disability Discrimination, in Violation of FEHA against Royal and DOES 1-100, (id. at 22-23 ¶¶ 64-71); (7) Violation of Labor Code Section 1197.5 (“Equal Pay Act”) against Royal and DOES 1-100, (id. at 23-24 ¶¶ 72-77); and (8) Retaliation, in Violation of the Equal Pay Act against Royal and DOES 1-100, (id. at 24-25 ¶¶ 78-83).

On December 28, 2022, Royal removed the case to this Court based on federal diversity jurisdiction. (Id. at 1 ¶ 2). Royal argues that, contrary to the allegations in the Complaint, its principal place of business is in South Bend, Indiana and not Los Angeles. (Id. at 2 ¶ 4). Royal also contends that it “does not have any employee named Maria Eichacker, and did not employ any such person at the time of the events giving rise to the Complaint. Therefore, [Royal] believes Plaintiff fraudulently joined a non-existing person . . . and her citizenship must be disregarded.” (Id. at 4 ¶ 15 (citation omitted)). Additionally, Royal estimates the amount in controversy in this case to be approximately $188,272. (Id. at 5-7 ¶¶ 18-19).

On February 6, 2023, Plaintiff filed the instant Motion. (Mot.). Plaintiff does not dispute that Royal's principal place of business is outside of California. See (id.). Plaintiff also does not dispute that the amount in controversy exceeds $75,000. See (id.). In addition, Plaintiff concedes that the Complaint “misstated the last name of Defendant Maria.” (Id. at 4). Nonetheless, Plaintiff argues that “further investigation and discovery will reveal the precise name and identity of the individual Defendant whose first name is Maria and who exercised supervisory control over Plaintiff in the course of his duties at Royal ....” (Id. at 4). Plaintiff also asserts that remand is proper because Royal has not met its burden to show that Defendant Eichacker has been fraudulently joined. See (id. at 5-8). On this point, Plaintiff argues that a “possibility exists that Plaintiff may prevail individually against Defendant [Eichacker] under a theory of hostile work environment” because Defendant Eichacker “subjected him to hostile work environment and harassment due to his disability and due to the fact that he is an African-American.” (Id. at 6-8).

Royal filed an opposition to the Motion on February 15, 2023. (ECF No. 17 (“Opp.”)). Among its arguments, Royal asserts: (1) Defendant Eichacker is a fictitious defendant and thus, should not be considered when determining the propriety of diversity jurisdiction, see (id. at 4-5); (2) Eichacker has been fraudulently joined as a “sham” defendant because California law bars Plaintiff's attempt to hold Eichacker liable for personnel management activities performed for Royal, see (id. at 5-8); and “Plaintiff has failed to exhaust his administrative remedies . . . by failing to include his intended individual defendant's name, address, and the alleged bases of liability in his administrative complaint.” (Opp. at 8-11). In support of its opposition, Royal attaches a declaration from Mark Farkas (“Farkas”), Plant Manager of Royal's facility where Plaintiff worked. (ECF No. 17-2 ¶ 3). Farkas declares that, based on his review of Royal's personnel records, “no individual by the name of ‘Maria Eichacker' has been employed at the Facility between 2020 to present.” (Id. ¶ 6).

On February 22, 2023, Plaintiff filed a reply to Royal's opposition, (ECF No. 22 (“Reply”)), accompanied by his own signed declaration. See (ECF No. 23). Plaintiff's declaration states in pertinent part:

4. During my employment at Royal . . . I suffered harassment and discrimination due to my race and due to my disability, which was caused by an injury I had suffered at work.

5. My supervisor, Maria, took no action to prevent this discrimination and harassment from occurring, nor did she attempt to protect me from the hostile work environment I was exposed to.

6. In addition, she treated me with hostility, and was frequently rude and bad-tempered towards me and did not take my complaints seriously.

7. To the best of my recollection, Maria was 170 pounds, medium weight, with brown hair, and in her late 50s or early 60s. She typically wore pants and a shirt to work. She had long hair and brown eyes. To reiterate, Maria was my supervisor and I reported to her.

(Id. ¶¶ 4-7).

II. LEGAL STANDARD

Federal courts are courts of limited jurisdiction. Kokkonen v Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Consequently, district courts are presumed to lack jurisdiction unless the Constitution or a statute expressly provides otherwise. Stock West, Inc. v. Confederated Tribes of Colville Rsrv., 873 F.2d 1221, 1225 (9th Cir. 1989) (citation omitted). The party seeking to prove federal jurisdiction bears...